by David H. Gans, Director of the Human Rights, Civil Rights, and Citizenship Program, Constitutional Accountability Center

As discussed earlier today, yesterday Constitutional Accountability Center filed an amicus curiae brief in McDonald v. City of Chicago urging the Supreme Court to breathe new life into the Privileges or Immunities Clause and correct the monumental error it made in the Slaughter-Houses Cases when it drained the Clause of any real meaning or force.   Filed on behalf of a remarkable and diverse group of constitutional scholars – Richard Aynes, Jack Balkin, Randy Barnett, Steven Calabresi , Michael Kent Curtis, Michael Lawrence, William Van Alstyne, and Adam Winkler – the brief makes the overwhelming case for restoring to the Constitution the Fourteenth Amendment’s explicit textual protection for substantive liberty.

The text and history the brief recounts show that the Privileges or Immunities Clause was meant to protect substantive fundamental rights, including rights set out in the Bill of Rights and elsewhere in the Constitution, as well as other unenumerated fundamental rights.  As the brief demonstrates, there is a remarkable left-right-center scholarly consensus that the Court should finally honor this text and history, and restore the Privileges or Immunities Clause to its proper constitutional place.

A leading objection to the scholarly consensus is not that it is wrong, but that breathing new life into the Privileges or Immunities Clause would exclude noncitizens from constitutional protection.  This is a serious objection, and it deserves careful consideration, but upon such consideration, it falls wide of the mark.  Recognizing the Privileges or Immunities Clause as the constitutional text protecting the substantive fundamental rights of American citizens should not undercut the constitutional protections provided to aliens, assuming we are sensitive to the fact that two other provisions of the Fourteenth Amendment protect aliens as well as citizens.

Those two provisions  – the Equal Protection Clause and the Due Process Clause – apply by their express terms to “any person” and were designed to include aliens within their protections.  During debates on an early version of the Amendment, Rep.  John Bingham – the Amendment’s primary draftsperson –explained that “no man, no matter what his color, no matter beneath what sky he may have been born . . . shall be deprived of life or liberty or property without due process of law . . . .” He demanded that “all persons, whether citizens or strangers, within this the land, . . . have equal protection in every State of this Union in the rights of life and liberty and property.”

Indeed, the very first statute passed to enforce the Fourteenth Amendment protected the rights of aliens to equality under the law.  In 1870, within a few years of the ratification of the Fourteenth Amendment, Congress used its newly granted power to enforce the Fourteenth Amendment to protect the rights of resident aliens, primarily Chinese immigrants in California who faced pervasive racial discrimination. As one Senator explained, “we will protect Chinese aliens or any other aliens whom we allow to come here, and give them a hearing in our courts; let them sue and be sued; let them be protected by all the laws and the same laws that other men are.”  During the debates, Bingham emphasized that “immigrants” were “persons within the express words” of the Fourteenth Amendment “entitled to the equal protection of the laws.”

This text and history support taking seriously the Fourteenth Amendment’s protections, and reading the Due Process Clause to ensure that states provide aliens with the full range of procedural protections, and reading the Equal Protection Clause to outlaw all invidious discrimination against aliens.

This last protection is extremely important because virtually all of aliens’ constitutional victories at the Supreme Court have come through the Equal Protection Clause, including Yick Wo v. Hopkins, Graham v. Richardson, and Plyler v. Doe.   Each vindicated the rights of aliens to be free from discrimination under the Equal Protection Clause.

Taking the text and history of the Fourteenth Amendment seriously – both by rejuvenating the Privileges or Immunities Clause and putting more teeth into the protections for aliens’ rights to legal equality and fair procedures – should result in a gain in legal protections for aliens, and not a loss of rights.

Aliens, to be sure, might lose the ability to challenge generally applicable state laws on the grounds that they violate substantive fundamental rights – assuming all protection of substantive fundamental rights were shifted away from the Due Process Clause in favor of the Privileges or Immunities Clause.  But what aliens might lose under the Privileges or Immunities Clause, they should more than get back under a stronger reading of the Equal Protection Clause, which as noted has been the source of most of their Fourteenth Amendment victories.  The text and history of the Equal Protection Clause, and the specific inclusion of aliens as a protected class, would support strengthening  the Court’s reading of anti-discrimination protections.  Those protections were once quite strong – Graham v. Richardson held that aliens were a suspect class, and that state discrimination against aliens demanded strict scrutiny – but a number of decisions in the 1980s created an amorphous “political function” exception and used that exception to justify a whole host of discriminatory laws preventing aliens from serving as school teachers and police officers, and in other professions as well.  Taking the text and history seriously here provides strong arguments for recapturing some of this lost ground.

Finally, a shift to the Privileges or Immunities Clause could even inure to the benefit of aliens in other ways.  Take the right of protection – unquestionably one of the Privileges or Immunities that the framers of the Fourteenth Amendment considered a fundamental right of all citizens protected by the Privileges or Immunities Clause, as well as a right of all persons secured by the Equal Protection Clause.  The Court has ignored this text and history in cases like Deshaney v. Winnebago County and Castle Rock v. Gonzales, holding that the Due Process Clause does not require state and local governments to protect anyone against threats of harm, even when the government turns a blind eye to known violence.  Taking text and history seriously would not only require overruling DeShaney, it would also demand that all persons, citizens as well as aliens, be afforded the right to protection.

In short, protection of the rights of both citizens and aliens was central to the framers of the Fourteenth Amendment in ways the Supreme Court has yet to fully recognize.  All Americans – whether birth-right citizens or aliens – should cheer a ruling in McDonald that takes the text and history of the Fourteenth Amendment seriously.

Cross-posted at Balkinization.